Woodruff v. State

• Decision Date: 09 February 1971
• Docket Number: No. 42,42
• Citation: 273 A.2d 436,11 Md.App. 202
• Parties: Marshall Emerson WOODRUFF v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 202

11 Md.App. 202

273 A.2d 436

Marshall Emerson WOODRUFF v. STATE of Maryland.

No. 42.

Court of Special Appeals of Maryland.

Feb. 9, 1971.

Charles A. Dukes, Jr., Hyattsville, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were John J. Garrity, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Jayson L. Amster, Asst. State's Atty., Prince George's County, on brief for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH, THOMPSON, MOYLAN and POWERS, JJ.

MOYLAN, Judge.

The appellant, Marshall Emerson Woodruff, was the twenty-five-year-old owner and operator of a small store, called The Joint Possession, in College Park, Maryland, which specialized in selling leather goods, posters and other objects of interest primarily to young people including several varieties of underground newspapers. On June 23, 1969, a Prince George's County policeman purchased from a sales person in the store, not the appellant, a copy of The Washington Free Press, Volume 3, No. 5, dated June 1-15. The appellant was subsequently indicted for a violation of Article 27, Section 418, in that he did, in the words of the indictment, 'unlawfully and knowingly sell and have in his possession with the intent to sell lewd, obscene and indecent newspapers.' At a non-jury trial in the Circuit Court for Prince George's County, the appellant was convicted and was subsequently sentenced to a term of six months in jail and to a fine of $1,000. On appeal he raises essentially three issues:

(1) That the newspaper in question was not obscene,

(2) That the trial court committed prejudicial error in excluding from evidence testimony offered by him on the question of obscenity, and

(3) That there was no showing by the State of scienter on his part.

Initially it is clear that words 'lewd' and 'indecent' contained in the indictment, have been absorbed into the word 'obscene' and have no independent vitality of their own. Donnenberg v. State, 1 Md.App. 591, 597, 232 A.2d 264; Levin v. State, 1 Md.App. 139, 143, 228 A.2d 487. ¹ It is also clear that the courts, trial and appellate, of this State are bound by the definition of obscenity as enunciated by the Supreme Court of the United States and that the Maryland Legislature intended by its use of the word 'obscene' to connote that which the word 'obscene' means in prevailing leading legal thought. Donnenberg v. State,supra, 1 Md.App. at 597, 232 A.2d 264, and Levin v. State, supra, 1 Md.App. at 143, 228 A.2d 487. That a state legislature's or state court's definition of 'obscene' may not be broader than that constitutionally permitted by the First and Fourteenth Amendments was made clear in Mishkin v. New York,383 U.S. 502, 507-508, 86 S.Ct. 958, 963, 16 L.Ed.2d 56:

'States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which restrict the regulation of the publication and sale of books to that traditionally and universally tolerated in our society.'

Necessity for Independent Review

It has been uniformly recognized by this Court, the Court of Appeals and the United States Supreme Court that the reviewing court has the obligation to make an independent, reflective constitutional judgment on the facts. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 258 A.2d 240; Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A.2d 317; Levin v. State, supra; Donnenberg v. State, supra; Lancaster v. State, 7 Md.App. 602, 256 A.2d 716; Dillingham v. State, 9 Md.App. 669, 673, 267 A.2d 777. Material 'Taken as a Whole'

It is also well settled that, in fulfilling our obligation to make an independent review of and judgment on the material in question, we must view that material as a whole and not look narrowly at isolated fragments of it. In Dillingham v. State, supra, at 673-677, 267 A.2d 777, Judge Thompson reviewed thoroughly the case law-emanating from the Supreme Court, the Maryland Court of Appeals and various United States Courts of Appeal throughout the country-mandating this broad viewing of the suspect material, and it is unnecessary to restate that discussion here.

In dealing with a situation closely analogous to the one at bar, a situation where another, earlier issue of The Washington Free Press was being reviewed but where particular attention was focused on a cartoon depicting crudely an act of masturbation, Judge Thompson said in Dillingham at 677-678, 267 A.2d at 782:

'We think the cartoon is inextricably bound to the iconoclastic nature of the entire periodical. While we most emphatically disagree with the ideas expressed in this periodical, there is no suggestion they were not sincerely held, or more importantly, were inserted merely to provide a pseudo-intellectual background for the publication of the cartoon. While different topics are considered in the different articles of the newspaper, their attitudes and ideas are uniform throughout.'

It is, furthermore, quite clear that the trial judge in this case arrived at his conclusion based upon a consideration of the newspaper in question 'taken as a whole.' He had, in anticipation of trial read a copy of the paper on the afternoon before trial. No objection was made to this. In the course of opening argument, appellant's counsel stated at one point, 'Even the hard core test, Your Honor, has to consider the material taken as a whole.' The Court replied, 'I am considering it as a whole.' In the course of rendering his verdict, the judge stated, 'I am quite familiar with the full contends. I am not passing on just the cartoon itself. We gather what the entire message shows.'

The Material in this Case

In making then our independent analysis of the allegedly obscene material in this case 'taken as a whole,' we are confronted with Issue No. 5 of Volume 3 of The Washington Free Press, the particular issue of the bi-weekly paper convering the period of the first two weeks of June, 1969. The masthead also reveals that the paper operates out of 1522 Connecticut Avenue in the District of Columbia, sells for 20 cents per copy within the District and for 25 cents per copy outside of the District. It is a 24-page, tabloid-sized newspaper. Pages 2 through 11 and 14 through 23 are in black and white. The front and back pages and the center spread are in yellow, orange and pink color.

Page 1 establishes the clear and unwavering theme of the entire issue. An upraised arm holds aloft a torch from which yellow and pink flame emanates in psychedelic radiance. Within the flame is discernible the leering face of a belled and spangled joker, clown or harlequin, reminiscent of the Italian commedia dell'arte. The caption is 'Berkeley is Burning . . . All Over the Country.'

Page 2 contains a reductio-ad-absurdum satire of a letter-to-the-editor from a repentant marihuana smoker. It contains an article on a protest radio show in the District of Columbia, some news on rock concert festivals coming up during the summer of 1969 and some practical advice on how sympathizers with Cesar Chavez and the striking grape workers could harass the Safeway Stores.

Page 3 contains a picture of a National Guardsman aiming a rifle at a running individual, apparently on the campus of the University of California at Berkeley. It contains pointedly anti-government articles on (1) the trial of three individuals for destroying Draft Board records and (2) the trial of another individual for refusing to report for induction into the armed services. It contains a satirical article on an individual arrested for flying a kite with tongue-in-cheek reference to kite flying leading 'to heavier stuff.' Under the title of 'NARC' it shows the picture of an ostensible District of Columbia undercover agent with its implied warning to those violating any of the narcotics laws to beware of this penetration agent. It also contains a short quotation from Marshall McLuhan.

Page 4 consists largely of an editorial criticizing the Citizens Advisory Councils established to work with the Police Department in the District of Columbia. It also makes reference to a so-called 'Red Alert' at the University of Colorado.

Page 5 is a reprint from The New York High School Free Press commending student rebellion in the public school systems.

Page 6 consists of short excerpts from newspapers all over the world reporting demonstrations and protests and allegedly repressive police conduct. It also contains a short quotation from Senator Edward Kennedy of Massachusetts.

Page 7 contains two by-lined articles, one strongly critical of police conduct in Montgomery County and the other strongly critical of the conviction in the Circuit Court for Montgomery County of Brint Dillingham for the sale of allegedly pornographic material. ²

Pages 8 and 9 consist largely of an editorial responding to one in The Diamondback, the student newspaper of the University of Maryland, and dealing with President Nixon's policies in Vietnam; an article about violent student revolt in Japan and an article strongly castigating the 'imperialist' activities of the Rockefeller brothers in Venezuela. A small box on page 8 urges a nationwide boycott of the Dow Chemical Company; another box on page 9 criticizes allegedly repressive tactics of the American Government in Puerto Rico.

Pages 10 through 14 are devoted to the recurring battles between student rebels and university and government officials on the Berkeley Campus. These pages include the center spread where the type turns red and is surrounded by a yellow tree of climbing, stretching, groping, nude figures culminating in a clenched fist. A brief quotation from Lenin is interspersed amid the reports from Berkeley. A large part of the reported trouble swirls about the use of a so-called 'People's...